by John Boyko
The extradition hearing began with American and Canadian reporters joining Anderson’s supporters, a contingent from Missouri, and others filling the small courtroom. Matthews would make the final decision without the advice of a jury. He had a background and reputation that impressed few. A former mayor of Brantford, he had harassed electors, been accused of fraud during his election and of having beaten a prisoner, and was widely believed to have found his way to the bench only because he was a friend of John A. Macdonald.30
Macdonald was Canada’s most fascinating and influential political leader. Tall and gangly, with a quick smile, dancing eyes and an endless supply of jokes and funny stories, Macdonald was a hard drinker, a rascal and a charmer. His intelligence, political genius, and charisma would soon play an essential role in the birth of an independent Canada, and by 1860 Macdonald was already a successful corporate lawyer in Kingston and an experienced and skilful political strategist. His allies loved him and even enemies bore him grudging respect.
Since 1849, Canada’s government had been split into three parts: the Legislative Assembly (House of Commons), the Legislative Council (Senate) and the Executive Council (Cabinet). The British-appointed governor oversaw it all. In the late 1850s, the governor general still held significant power, especially with respect to international matters. Internal political power, however, rested in the elected Legislative Assembly, as it controlled the purse and decided which party would form the government (that party’s leader became premier, or in modern parlance, the prime minister). Macdonald had been Canada’s joint premier, with Étienne-Paschal Taché and George Étienne Cartier, since 1856. He was also attorney general of Canada West, although everyone regarded him as representing the entire colony in legal matters. The Anderson case was a complex challenge that Macdonald needed to meet with consideration for its legal and domestic political ramifications, and its effect on Canada’s dangerous and shifting relationship with the United States and an increasingly truculent Britain.
Macdonald was torn by the case. His personal opinion sided with Anderson and the abolitionists.31 In April 1856, he had involved himself in a similar case relating to a fugitive slave named Archy Lanton, whom American authorities wanted returned. Macdonald wrote to the provincial secretary arguing that the local magistrates had badly mishandled the case in allowing the Americans to retrieve Lanton without a hearing. He said, “There is so much reason to fear that Lanton, a man of colour, fugitive from the United States, was a victim of a scheme to kidnap him.”32 Macdonald ordered that the magistrates responsible for allowing Lanton to be taken back to the United States be fired.
Macdonald’s major political rival was Reformer George Brown. The two had clashed for years and seen political rivalry escalate to personal hatred. Macdonald concealed his feelings with barbed wit but Brown was transparently contemptuous toward his Conservative enemy. Because Brown was one of the abolitionist movement’s chief spokesmen, it would have been politically hazardous for Macdonald to enthusiastically support Anderson. Macdonald sought to avoid political problems by ordering Matthews to “require evidence of criminality sufficient to sustain a charge according to the laws of the Province before extradition should follow.”33 In other words, stick to the law.
The court heard a deposition from one of Digges’s slaves and then testimony from his son, both of whom had been present at the stabbing. It also heard an interpretation of the Fugitive Slave Law, which decreed that Digges had been legally obliged to try to stop anyone suspected of being a runaway slave. Finally it was Anderson’s turn. He testified that it had not been his intention to kill Digges. He explained that he had needed to use force to escape from the situation and from the United States in order to be free.
Matthews took little time to come to a decision. He explained to the court that his interpretation of the Webster-Ashburton Treaty led him to rule that Anderson should be extradited to the United States. The final step would be for the Canadian government to approve of the court’s decision. It would be up to Macdonald.
Missouri’s governor, Robert Stewart, was in a political pickle as treacherous as Macdonald’s. Should he remain quiet and allow the Canadians to decide a property issue involving one of his citizens? Should he use the power of his office to exert pressure on Canada and be seen by the people of his state, and indeed the people of the South, as doing so? Or should he do nothing? To do nothing would mean surrendering to the northern abolitionists and to Canadians, who had for some time been placing enormous pressure on slave states such as his and, in so doing, helping to make the secessionists’ case.
Stewart decided to join Missouri senator James Green, who had also been carefully following the Anderson case, and the two wrote letters to Secretary of State Cass. They demanded that the federal government intervene through Britain or directly with Canada.34 In his final speech upon leaving office in January 1861, Governor Stewart said that no state had suffered more as a result of what he called slave abductions. But, he continued, while he hoped his state would remain loyal to the Union, Missouri must continue to fight to retain its rights. And among them was the right to maintain slavery and do all that could be done to have runaway slaves returned from Canada. 35
Cass responded to Stewart and Green’s lobbying efforts and penned a formal request to Britain. Like the Canadian and American governments, the British government needed to balance a host of considerations in its response, and primary among them was the desire to avoid conflict with the United States. Westminster’s instruction to Canadian Governor General Sir Edmund Head, who had succeeded Lord Elgin in December 1854, was clear. Canadian authorities were to take whatever actions were necessary according to Canadian law but then they were, according to British Foreign Secretary Lord John Russell, to “deliver up the person of the above named John Anderson to any person or persons duly authorized by the authorities of Missouri to receive the said fugitive and bring him back to the United States for trial.”36
Freeman, the Hamilton attorney and founder of the Anti-Slavery Society of Canada, had petitioned the Canadian government on October 1, and on October 6 he began a fascinating correspondence with Macdonald. He wrote that the case rested entirely upon an interpretation of the Webster-Ashburton Treaty, and Macdonald agreed.
Freeman wrote to the attorney general explaining that he wished to present the argument that because Anderson and Digges had fallen into a scuffle while Anderson was attempting to flee, he was not guilty of murder but at most manslaughter.37 Manslaughter was not included in the treaty’s list of extraditable crimes. Furthermore, there was the precedent stating that any action taken in escaping slavery was justifiable. It was a broad moral argument, leaning more upon natural law than upon a narrow interpretation of Canadian law and the British treaty, but it might work.
During his long and storied political career Macdonald earned the nickname “Old Tomorrow,” for he was a master at knowing when it was wise to postpone decisions. In this case, he opted to do just that. He wrote to Freeman stating, “I have come to the conclusion with great regret, but without any doubt existing in my mind that this party has committed the crime of murder: under which circumstances all I can do is to give you every assistance in testing the question before the Courts or a Judge by Habeas Corpus.”38 Macdonald also secretly pledged to have the government pay all of Anderson’s legal fees.
GATHERING POLITICAL STORM
On November 4, 1860, Anderson stood as three sombre men in black robes entered Toronto’s Osgoode Hall courtroom. He could hear the sounds of the crowd in the packed and overheated hallways.
Freeman made the arguments he had carefully rehearsed. He concluded by quoting respected British statesman Lord Denman, who had once said that the Webster-Ashburton Treaty and related cases were based on the belief that “no nation is entitled to enforce a law of another country which was believed to be founded in injustice, such as the law of slavery.”39 Freeman then dramatically paused, slowly gathered his papers, carefully ordered the
m, and took his seat.
Henry Eccles led the Crown’s case. He dismissed Freeman’s moral arguments, saying that this was simply a narrow legal question. Furthermore, there was no exemption in the treaty for escaping slaves, and the court, he argued, could not invent one. He explained: “No doubt it is contrary to the spirit of every law of Great Britain and of this country, that anything savouring of slavery should be countenanced in the slightest degree, or that the least assistance should be lent towards forwarding the views or objects of such an institution, but we must be governed by the words of the treaty, which is to be construed as a contract, and we cannot add exceptions or provisions which it does not concede.”40 Eccles concluded with the point that, according to the Fugitive Slave Law, Digges had not an option, but a legal obligation, to stop Anderson.
Anderson was allowed to read from a prepared statement. He stood slowly and straightened himself. After three months in jail, often chained and with bad food and little exercise, Anderson had lost a considerable amount of weight. He cleared his throat and read carefully from a single sheet of paper. He concluded, “When I made up my mind no man should take me alive I was compelled to do what I did.”41 With that, Anderson sat and Chief Justice Robinson adjourned with the promise of a decision as quickly as possible.
Canadian newspaper reaction matched particular editorial bents. The Globe believed the case had been made for Anderson’s immediate release. In a series of articles and editorials it attacked Macdonald—nothing new for Brown’s paper—for shifting the political decision to the courts. The Conservative Hamilton Daily Spectator, on the other hand, attacked Brown and the Globe in an editorial that stated: “It is rather too much to accuse him [Macdonald] of being on the side of the slave catchers, and make people believe it, when it must be clear to everyone, that he could have no object of a personal or political nature in straining the law, as he is charged with having done.”42 On November 15, the Globe reprinted an editorial from the Daily Spectator’s cross-town rival, the Hamilton Times. It bristled with piqued nationalist-imperialist fury,
It is not alone the interests of the poor fugitive which are now involved. The sanctity of the refuge which the British flag has been supposed to provide to the unfortunate, is at stake; the honour and dignity of Canada is assailed; the safety of thousands of industrious, long suffering and loyal subjects of the Empire is threatened. It has come to this, that Canada is to be made the preserve of the slave hunter.… If the poor creature is left friendless and alone to battle with his hungry foes, he is lost and Canada is dishonoured; but if his interests are properly cared for, our glorious heritage—the laws of England—will hold him harmless.43
The decision was to come on November 29. Extra police were brought to Osgoode Hall and a large crowd mostly of Black men gathered outside. Chief Justice Robinson appeared just long enough to announce that the other two justices needed more time and so the decision would be delayed.
The delay allowed newspapers more time to stir flames of indignation. The Globe‘s editorial the next day was scathing. It said that a decision to send Anderson back to the United States would in itself be tantamount to murder: “The universal heart and conscience of the people of Canada and of the British nation will say upon the facts of the case that [Anderson] is not a murderer in the sight of God, or under English law, and therefore, that to surrender him to the bloodthirsty slave catchers of Missouri is to make those who order that surrender guilty of the murder of [Anderson] with all its horrible accompaniments.”44
The exploding notoriety of the case led a range of Canadian politicians to weigh in. Many new alliances were created and a number of old grudges forgotten. Reformers such as Michael Foley, for instance, who had previously been rather critical of Brown, swept into line behind him and attacked slavery, the Americans that hunted fugitive slaves in Canada, and Macdonald for his apparent support of their efforts.45
At the same time, Macdonald was being criticized for an embarrassing incident that took place during the Royal tour of Canada by Edward, the Prince of Wales. His Royal Highness and the British secretary of state for the colonies, the Duke of Newcastle, had to spend twenty-two uncomfortable hours aboard a ship in Kingston harbour to avoid dealing with displays by enthusiastic members of the anti-Catholic Orange Order, which in Canada was a powerful force but in England was illegal. The incident was hardly Macdonald’s fault but the scandal wouldn’t die, so he took his case directly to the people with something that had never been done in Canadian politics—a speaking tour.
On December 3, in a crowded St. Catharines hall, the air smudged with smoke and the 350 people in attendance plying themselves with food and liquor, the attorney general took his stand on the two issues of the day. He handled the Orange Lodge matter with deft humour. No one could charm like John A. He then turned to the Anderson case and for the first time addressed it in a public forum.
Macdonald defended the rule of law, the professionalism of the three presiding justices and all the decisions that had been made. He was greeted by rousing applause and cries of shame whenever Brown’s name was mentioned. “Strange to say,” he said, “Mr. Brown of the Globe, attempts to make it a matter of political capital against me, that instead of sending the man to be tried in the States … and I had to the power to send him at once to Missouri—I sent the matter to the judges, to have it fully decided whether a case was fully made out against him.”46 Macdonald concluded with the argument that he and his party, and not Brown’s, were more avowedly anti-slavery.
Meanwhile, many American newspapers continued to raise concerns about the damage the Anderson case could do. The Detroit Daily Advertiser, for instance, published an editorial stating, “if this case is decided in favor of the claimants, it will virtually break up the underground railroad, and make Canada no longer a resort for runaways.”47 The New York Times reported extensively on the Anderson case and reflected an understanding of its importance in Canadian internal political struggles and in Canadian, British and American relations. One article spoke of the case potentially leading to war, arguing, “as to the relations between Great Britain and the United States … [t]he case could be a casus belli between the two countries.”48
The Baltimore American joined many Southern papers in making public the argument that Missouri governor Stewart and others were making privately: the Anderson case was playing a role in the debates taking place in many Southern cities regarding secession. One article, for instance, stated bluntly that Anderson needed to be quickly extradited to stand trial in Missouri to help dissuade those in the state wishing to secede. It argued: “It is important to the south that assassins like Anderson be returned to face their justly deserved punishment. When such deeds go unpunished, who will say that the people of the South have no cause of complaint.”49
Finally, the justices were ready. It was December 15 and the day had dawned cold. A large and restless crowd had assembled and armed police were again ready with a contingent of soldiers assembled nearby. Just after ten o’clock, Chief Justice Robinson led justices McLean and Burns to their spots. The judges would rule separately, so it would take two decisions in Anderson’s favour to save his life.
Robinson began reading his carefully prepared statement. He presented the argument that it was not necessary to prove that the murder had been committed in order to extradite Anderson but only that there was sufficient evidence for there to be a trial. That he stabbed Digges in an attempt to escape slavery was, bluntly, irrelevant. He concluded that Anderson should be sent back to Missouri to stand trial for murder.
Next up was Justice Archibald McLean. He disagreed with Robinson and took a broad interpretation of existing law, echoing Freeman’s moral argument. He said Anderson was “a fugitive from the adjoining republic [where] the evils and the curse of slavery are every day becoming more manifest and … in my judgement the prisoner was justified in using any degree of necessary force to prevent what to him must inevitably have proved a most fearful evil.… I can n
ever feel bound to recognize any enactment which can convert into chattels a very large number of the human race.”50
It would be up to Burns to break the tie. He argued that in order to interpret the treaty it was necessary to determine not just the words but the intentions of those who wrote and ratified it. “It is true,” he said, “that the moment a slave puts his foot upon Canadian soil he is free, but the British government never contemplated that he should also be free from the charges of murder, piracy or arson, though the crime was committed in the endeavour to obtain freedom.”51 The audience gasped. Burns was agreeing with Robinson.
All eyes returned to Robinson. The chief justice ordered Anderson returned to jail in Brantford to await extradition to the United States. He then agreed to Freeman’s request that the execution of the order be delayed a week to give time to deal with the question of an appeal.
Anderson was led out the front doors in handcuffs. Some in the crowd cheered him while others roared in anger to demonstrate their opinion of the decision. Freeman calmed the crowd and shouted out, “It is the law. We must obey it.”52 People rushed forward as Anderson was led to a waiting cab. There was confusion as to whether they were seeking simply to see him or wanting to spring him from the custody of the deputy sheriff. Police roughly pushed people away and cleared a path for the cab to leave. Within minutes Anderson was back in his small cell at the Toronto jail. The crowd dispersed without incident. But it was not over.
From the Kingston home he seldom saw, Macdonald sent a telegraph to Freeman offering to have the government pay expenses for an appeal.53 A couple of days later, on December 22, Freeman was back in court before Chief Justice Robinson. Robinson made it clear that he saw little chance of the appeal being successful and ruled against allowing it. Anderson was placed on a train and returned to his cell in Brantford to await extradition to Missouri.
